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|Case Number:||Petition E035 of 2022|
|Parties:||Ezekiel Otieno v Funds Account Manager, Mathare National Constituency Development Fund, Mathare National Government Constituency Development Fund, Mathare NGCDF & CDF Committee, Mathare National Government Constituency Development Fund – Mathatre Ng-Cdf Office; Public Procurement Review Board, Public Procurement & Regulatory Authority, Anthohny Oluoch, Oris & Sons Contrators Limited, Fixkar E.A. Group Limited, Laville Enterprises Limited, Flex (K) Limited, Graville Enterprises, Safa Service Providers Limited, Mercow Engineering & Gen Supplies Limited, Property Sustainability & Services Soulution Limited, Ethics & Anti-Corruption Commission & Kevin Mcakech (Interested Parties)|
|Date Delivered:||22 Mar 2022|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Hedwig Imbosa Ong'udi|
|Citation:||Ezekiel Otieno v Funds Account Manager, Mathare National Constituency Development Fund & 2 others; Public Procurement Review Board & 12 others (Interested Parties)  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.E035 OF 2022
EZEKIEL OTIENO (suing on his own behalf and
On behalf of the General Public)........................................................................ PETITIONER
FUNDS ACCOUNT MANAGER, MATHARE NATIONAL
CONSTITUENCY DEVELOPMENT FUND .......................................... 1ST RESPONDENT
MATHARE NATIONAL GOVERNMENT CONSTITUENCY
DEVELOPMENT FUND, MATHARE NGCDF................................... 2ND T RESPONDENT
CDF COMMITTEE, MATHARE NATIONAL GOVERNMENT
CONSTITUENCY DEVELOPMENT FUND –
MATHATRE NG-CDF OFFICE............................................................. 3RD RESPONDENT
PUBLIC PROCUREMENT REVIEW BOARD..........................1ST INTERESTED PARTY
PUBLIC PROCUREMENT AND REGULATORY
AUTHORITY ............................................................................... 2ND INTERESTED PARTY
ANTHOHNY OLUOCH .............................................................3RD INTERESTED PARTY
ORIS & SONS CONTRATORS LIMITED ............................. 4TH INTERESTED PARTY
FIXKAR E.A. GROUP LIMITED............................................. 5TH INTERESTED PARTY
LAVILLE ENTERPRISES LIMITED ..................................... 6TH INTERESTED PARTY
FLEX (K) LIMITED ................................................................. 7TH INTERESTED PARTY
GRAVILLE ENTERPRISES .................................................... 8TH INTERESTED PARTY
SAFA SERVICE PROVIDERS LIMITED ............................. 9TH INTERESTED PARTY
MERCOW ENGINEERING AND
GEN SUPPLIES LIMITED .....................................................10TH INTERESTED PARTY
PROPERTY SUSTAINABILITY AND
SERVICES SOULUTION LIMITED .................................... 11TH INTERESTED PARTY
ETHICS AND ANTI-CORRUPTION COMMISSION ........12TH INTERESTED PARTY
KEVIN MCAKECH .................................................................13TH INTERESTED PARTY
1. The petition dated 24th January, 2022 arises out of complaints in respect of several tenders outlined at paragraph 3.1. of the petition. The petitioner claims that the tendering process was marred with irregularities and corruption.
2. He therefore prays for the following orders:
(i) Pending the hearing and determination of this Petition, conservatory Orders be issued in terms of Chambers Summons filed herewith.
(ii) A declaration that the action of the Respondents are brazen, illegal, egregious, discriminatory and in violation the petitioner's and the general public constitutional nights.
(iii) A declaration that the actions of the respondents have contravened Articles 10,73,75,201(A),227(A) and 232 of the Constitution and provisions of the Public Procurement Act.
(iv) A declaration does issue that the whole tendering process as was advertised by the 2nd Respondent on 13th September, 2021 was illegal, a sham, marred with incurable irregularities and blatantly unconstitutional.
(v) An order of certiorari to remove into this honourable court for the purpose of it being quashed the decision by the respondents to advertise and award the impugned tenders.
(vi) An Order of Mandamus do issue compelling the Respondents within 14 days of this Honourable Court's judgment begin the tendering process afresh and ensure due procedure is followed to the letter.
(vii) An Order of Prohibition do issue prohibiting the 1st , 2nd and 3rd Respondents from releasing, paying out, reimbursing any funds to the 4th , 5th , 6th , 7th , 8th 9th 10th 11th Interested Parties with regards to the impugned tenders.
(viii) This Honourable Court do issue such Orders and give such Directions as it may deem just and appropriate in the circumstances of this matter.
(ix) The costs of the Petition be awarded to the Petitioner.
The preliminary objections
3. A preliminary objection dated 9th February, 2022 was filed by the 7th, 8th and 11th interested parties through the firm of Musesya & Co. advocates. Counsel raised the following points for determination:
(i) The subject of the application and the petition herein is a complaint by the Petitioner against the Respondents and the Interested Parties for various tenders namely;
a) TENDER NO. MTHR/014/2020-2021 (PROPOSED CONSTRUCTION AND COMPLETION OF 12 NO. CLASSROOMS WITH IRON SHEET ROOF AND 2 NO. STAIRS AT NDURURUNO PRIMARY SCHOOL)
b) TENDER NO. MTHR/015/2020-2021 (PROPOSED CONSTRUCTION AND COMPLETION OF 12 NO. CLASSROOMS WITH IRON SHEET ROOF AND 2 NO. STAIRS AT KIBORO PRIMARY SCHOOL)
c) TENDER NO. MTHR/016/2020-2021 (HURUMA PRIMARY SCHOOL CONSTRUCTION OF 600 CAPACITY MULITIPURPOSE HALL; LAYING OF FOUNDATION)
d) TENDER NO. MTHR/018/2020-21 (DAIMA PRIMARY SCHOOL CONSTRUCTION OF TWO CLASSROOMS WITH A SLAB AND FLOOR TILES TO COMPLETION)
e) TENDER NO. MTHR/022/2020-2021 (VALLEY BRIDGE PRIMARY SCHOOL REHABILITATION OF CLASS & CLASSROOMS TO COMPLETION)
f) TENDER NO. MTHR/023/2020-2021 (NGEI WARD CHIEF OFFICE CONSTRUCTION OF AN ADMINISTRATION BLOCK TO COMPLETION)
(ii) Under section 93 of the Public Procurement and Asset Disposal Act, 2015 (herein after referred to as "The Act") the Petitioner/Applicant or such other persons who claim to have suffered risks, losses and damages as a result of an alleged breach of duty by the procuring entity were required to seek an administrative review in the manner prescribed under the Act.
(iii) Accordingly, this Honourable Court lacks the requisite jurisdiction to entertain a petition or an application alleging contravention of the provisions of the Act as a violation of the Constitution and as such, the alleged dispute should be dealt with in accordance with the provisions of the Act.
(iv) The substratum of the Petitioner's action is a procurement process undertaken by the Respondents and therefore the Court lacks jurisdiction because once a party brings themselves within the provisions of the Act, the party is obliged to comply with the procedure under The Act.
(v) The Petitioner has not shown that he referred the complaints, subject of the application and the petition, for an administrative review in a manner under the Act and thus the instant application is pre-mature or moot and an abuse of the Court's process.
(vi) The instant application and petition are frivolous, baseless and are an abuse of the Court process and therefore fit for striking out with costs.
(vii) In light of the above, this Honourable Court's orders issued on the 27th day of January 2022 where a temporary injunction prohibiting the 1st, 2nd and 3rd Respondents from approving, releasing, paying out or reimbursing any funds to the 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th, Interested Parties with regards to the abovementioned tenders, be set aside and the notice of motion application and petition herein be dismissed with costs to the 7th, 8th, and 11th Interested Parties.
4. Another preliminary objection was raised by the 3rd respondent vide the replying affidavit of Moses Okaalo sworn on 7th February, 2022. It raises similar issues as those raised by the 7th, 8th and 11th interested parties. It mentions the following points:
(i) This court by virtue of the public procurement and Asset Disposal Act lacks jurisdiction to hear this petition.
(ii) The issues raised herein are commercial in nature and do not warrant the invocation of this court’s jurisdiction under Articles 22 and 23 of the Constitution at this Division.
(iii) The petition offends the doctrine of subjudice as some of the issues herein are pending in NRB High Court Judicial Revision No.E205 of 2021 which was never disclosed to this court.
(iv) Various contracts have been executed and construction is on going.
The petitioner’s grounds of opposition to the preliminary objections
5. The petitioner raised the following grounds of opposition dated 28th February, 2022 to both preliminary objections:
(i) The Preliminary Objection does not raise pure points of law and does not therefore meet the threshold set by the decision in the case of Mukisa Biscuit Manufacturing Company Limited-vs West End Distributors Limited (1969) EA696.
(ii) The Preliminary Objection specifically raised by the 3rd Respondent dated 9th February, 2022 under consideration runs against the grain by raising factual issues which need evidence before the court, more particularly the extent of the relationship, contractual or otherwise between the parties in the petition, thereby inviting the court and parties to investigations and inquiries.
(iii) The purported Preliminary Objection is premised on a narrow and restrictive interpretation of the legal principle of locus standi, without regard to the liberal, purposive and broad interpretation demanded by the relevant provisions of the Constitution of Kenya, 2010.
(iv) The purported Preliminary Objection disregards the fundamental rights guaranteed to the citizens of Kenya under, inter alia, Articles 22, 23, and 48 and specifically the broad mandate vested in the High Court under Article 165 (3)(b) of the Constitution of Kenya 2010.
(v) Pursuant to section 167(1) of the Public Procurement and Asset Disposal Act, 2015 administrative review is available only to the candidates or tenderers, the petitioner was a neither a candidate nor a tenderer in the subject procurement which gave rise to this proceedings.
(vi) A person locked out from invoking the provisions of the Public Procurement and Asset Disposal Act is not barred from seeking alternative remedy under other provisions of the law.
(vii) The Notices of Preliminary Objection are fatally incompetent, incurably defective and based on a misapprehension of the law.
(viii) The Notices of Preliminary Objection are abuse of precious judicial time and it is in the interest of justice and fairness that they be dismissed with costs.
(ix) The Notices of Preliminary Objection goes against the public interest represented by the petitioner herein.
The 3rd respondent and 10th Interested parties submissions to the preliminary objection.
6. Mr. Ochieng Oginga filed submissions dated 18th February, 2022 on behalf of the two interested parties. Counsel has submitted that the matter before this court is mainly a commercial dispute and this court lacks jurisdiction to deal. He cited the case of Eric Wambua Muli & anor Vs. Prime Bank Ltd & 3 others  eKLR where Justice Mativo stated:
“Even if I were to find that there are constitutional issues raised, I take the view that the commercial division would be the right forum. Further, I fail to appreciate why the petitioners opted to file this petition citing similar issues they have raised in the lower court. This raises the question whether this petition is an abuse of court process.”
7. Counsel further relied on the following cases to buttress his contention that this matter being commercial cannot be heard by this court.
(i) Trustees Rural, Private Hospital Association of Kenya v. CEO National Hospital Insurance Fund & 2 others. Kenya Medical Practitioners & Dentist board & another. (Interested Parties) Petition E016 of 2021  eKLR.
(ii) Revital Health (EPZ) Ltd. vs Public Procurement Oversight Authority & 6 others. Constitutional Petition No.75 of 2021.
8. He finally submitted that the court could not transfer the petition to another court as guided by the Supreme Court in the case of:
Albert Chaurembo Numba & 7 others (sued on their own behalf and on behalf of Predecessors and or successors in title in their capacities as the registered trustees of Kenya Ports Authority Pensions Scheme) Vs Maurice Munyao and 148 others (suing on their own behalf of the plaintiffs and other members of the Kenya Ports Authority Pensions Scheme)  eKLR. where the supreme Court stated:
“ However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
9. Mr. Musesya filed the submissions dated 22nd February, 2022. He has submitted that the interested parties’ preliminary objection is based on the ground that the substratum of the petitioners’ petition and application is a procurement process which should be dealt with in the provisions of the Public Procurement & Asset Disposal Act 2015 (The Act). He submits further that the Act lays down procedures dealing with tendering and asset disposal disputes.
10. He cites provisions like Sections 167(1), 170(d), 173 & 175(1) as some of the sections involved. He refers to paragraphs 1.5, 3.1, 3.3, 3.4, 37, 3.10 -3.14 where the petitioner alleges breach of sections 70, 78(8) of the Act. It is his argument that the breaches complained of call for a dispute resolution under the provisions of the Act at part xv. He submits that there is no evidence that the petitioner/applicant approached the board to complain about the six (6) tenders and leave was denied.
11. Counsel dismissed the petitioner’s argument that this court is vested with jurisdiction to hear and determine the procurement dispute as a means of an alternative remedy under section 174 of the Act. The reason he says is that the request for review is in addition to any other legal remedy one may have. He submits that the assertion that the procurement was not in accordance with the constitution must be dealt with under the dispute resolution mechanism stipulated in the Act. He relied on the cases of:
(i) Benson Ambuti Adega & 2 others v. Kibos Distillers Limited & 5 others  eKLR.
(ii) Abdalla Abubakar Miraj & another v. Kenya Ferry Services Ltd.  eLKR.
He urged the court to down its tools for lack of jurisdiction.
The petitioner’s submissions to the preliminary objection.
12. The petitioner’s submissions are dated 24th February, 2022 having been filed by Lehmann associates, advocates for the petitioner. Counsel has submitted that a preliminary objection should raise a pure point of law and not set out facts which are contestable. Pointing out the preliminary objection by the 3rd respondent counsel submits that it runs against the grain by raising factual issues which require evidence on the relationship between the parties. This would require investigations to be conducted on the same.
13. He referred to the case of George Oraro vs. Barak Eston Mbaja  eKLR where Ojwang J (as he then was) observed thus:
"I think the principle is abundantly clear. A preliminary objection correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details able to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement with learned counsel, Mr. Ougo, that where the Court needs to investigate facts a matter cannot be raised as a preliminary point..."
14. Counsel contends that this court has jurisdiction to hear matters on violation or threatened violations, fundamental rights, interpretation of the Constitution, matters relating to constitutional powers of state/public organs and state/public officers and for connected purposes of the Constitution.. He argues that the petition has no locus to file this petition before the review board as per the dictates of section 167(1) of the Act. That the only open avenue for him is this court. He referred to the case of the Republic v. IEBC and another Ex parte Coalition for Reform and Democracy & 2 others  eKLR where Odunga J held:
“173 With respect to the matters raised in these proceedings, it is clear that the applicant could not move the Review Board for determination. I agree with the IEBC that pursuant to section 167(1) of the Public Procurement and Asset Disposal Act, 2015 administrative review is available only to the candidates or tenderers and that the Applicant was neither a candidate nor a tenderer in the subject procurement. Strictly speaking therefore it was not the spirit or text of that law that parties other than candidates or tenderers should be permitted to challenge procurement processes through the procedure provided for under the Act. To that extent I agree that persons who fall within the category of the Applicant herein have no locus to commence proceedings before the Review Board
174. This does not however mean that a person aggrieved by the action of the Procuring Entity, in such circumstances is left without a remedy in my view, the remedy in such circumstances is to be found in section 174 of the Public Procurement and Asset Disposal Act which provides as follows:
The right to request a review under this Part is in addition to any other legal remedy a person may have.
175. In my view a person who would otherwise be locked out from invoking the provisions of the Public Procurement and Asset Disposal Act is not barred from seeking alternative remedy under other provisions of the law..."
Counsel urged the court to dismiss the preliminary objection.
15. Mr. Kimenju for the 5th interested party informed the court that his client would not participate in the preliminary objection. Save for the petitioner, 3rd respondent, 7th, 8th, 10th, and 11th interested parties, the rest of the parties did not participate in the preliminary objection proceedings.
Analysis and determination
16. The issue of jurisdiction is a pure point of law because jurisdiction is everything and flows from the law. If a court does not have jurisdiction it has to down its tools. This was the decision in Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd  eKLR where it was held:
“Jurisdiction is everything without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…. Where a court takes it upon itself to exercise jurisdiction which it does not posses its decision amounts to nothing. Jurisdiction must be acquired before judgment is given….”
17. There is no dispute that the petition and application before this court is founded on alleged malpractices, mismanagement of procurement processes and corruption in the tendering process that involved the award of six (6) tenders at the 3rd respondents CDF offices. Article 227 of the Constitution of the Kenya 2010 provides:
227. (1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
(2) An Act of Parliament shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented and may provide for all or any of the following—
(a) categories of preference in the allocation of contracts;
(b) the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination;
(c) sanctions against contractors that have not performed according to professionally regulated procedures, contractual agreements or legislation; and
(d) sanctions against persons who have defaulted on their tax obligations, or have been guilty of corrupt practices or serious violations of fair employment laws and practices.
18. The Public Procurement Disposal Act was enacted by Parliament to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities, and for connected purposes. Among the bodies created in this Act for purposes of monitoring the processes and procedures for purposes of compliance is the Review Board. Its functions are outlined under section 28 which provides:
Functions and powers of the Review Board
(1) The functions of the Review Board shall be—
(a) reviewing, hearing and determining tendering and asset disposal disputes; and
(b) to perform any other function conferred to the Review Board by this Act, Regulations or any other written law.
(2) In performance of its functions under subsection (1)(a) of this section, the Review Board shall have powers to develop rules and procedures to be gazetted by the Cabinet Secretary.
(3) The Authority shall provide secretariat and administrative services to the Review Board.
19. The composition of the Review Board is provided for under section 29 of the Act. It states as follows:
(1) The Review Board shall comprise of the following 15 members who shall be appointed by the Cabinet Secretary taking into account regional and gender balance—
(a) a chairperson whose qualifications and experience shall be as that of a Judge of the High Court;
(b) seven other members whose qualifications and experience shall be as prescribed in the regulations; and
(c) seven other persons appointed by the Cabinet Secretary.
(2) A person appointed as a member under subsection (1) shall be nominated by the following professional bodies from amongst their members as follows—
(a) two persons nominated by the Law Society of Kenya;
(b) one person nominated by the Chartered Institute of Arbitrators, Kenya Chapter;
(c) one person nominated by the Kenya Institute of Supplies Management;
(d) one person nominated by the Institute of Certified Public Accountants of Kenya;
(e) one person nominated by the Institute of Engineers of Kenya; and
(f) one person nominated by the Architectural Association of Kenya.
(3) The procedure for nominating the persons mention under subsection (2) shall be as prescribed.
20. Section 30 sets out the qualifications of the members of the Review Board. These are:
(1) A person shall not be appointed as a member of the Review Board under section 29 unless that person—
(a) possesses a university degree from a university recognised in Kenya;
(b) has knowledge and experience of not less than seven years in the relevant field;
(c) is a professional of good standing in his or her respective professional body; and
(d) meets the requirements of Chapter Six of the Constitution.
(2) The Chairperson appointed under this Act shall be a person who qualifies to be a judge of the High Court and shall meet the requirements of Chapter Six of the Constitution.
21. I have set out the provisions of sections 28 – 30 to show that indeed this Act has clearly provided for efficient management of the Act. The members of the Review Board must have the required qualifications for the task ahead of them.
22. Part XV of the Act which deals with administrative review of procurement and disposal proceedings is covered under sections 167 to 175. Section 167(1) gives an avenue for a candidate or tenderer to seek for administrative review. It is not disputed that the petitioner was not a candidate or tenderer. He is a concerned Kenyan.
23. Section 170 of the Act provides for the parties to a Review. These are:
The parties to a review shall be—
(a) the person who requested the review;
(b) the accounting officer of a procuring entity;
(c) the tenderer notified as successful by the procuring entity; and
(d) such other persons as the Review Board may determine.
24. Who is or who are these other persons that are mentioned under section 170 (d) of the Act? They are persons other than the contractor or tenderer. Does the petitioner herein belong to that class of people who may be enjoined in the review proceedings under section 170(d)?
25. A review of the petition shows that the petitioner has so much information about the tendering process that took place. There is no iota of evidence to show that he ever raised an issue with the Public Procurement Review Board seeking leave to participate in any review proceedings involving the award of the tenders and the leave was denied. Section 174 of the Act provides:
“The right to request a review under this Part is in addition to any other legal remedy a person may have.”
There is nothing that stopped the petitioner from requesting the Review Board to hear his claims.
26. Further, under this Act, there is the formation of the Public Procurement Regulatory Authority. One of the functions of this body is under section 9(h) which states:
9- Functions of Authority:
The functions of the Authority shall be to:
(h) to investigate and act on complaints received on procurement and asset disposal proceedings from procuring entities, tenderers, contractors, or the general public that are not subject of administrative review.
27. The two bodies i.e the Public Procurement Regulatory Authority and the Public Procurement Review Board have the technical officers to carry out the required investigations into complaints such as those raised by the petitioner herein. The petitioner never reported his complaints to the Regulatory Authority. Once a decision has been made by the Review Board an aggrieved party has the right to move to the High Court for Judicial Review.
28. The petitioner has tied a number of claims of violation of his constitutional rights to the occurrences above this court. This court does not however lose sight of the fact that the basis of all these claims and the substratum of this matter is the alleged non-compliance with the processes and procedures under the Public Procurement and Asset Disposal Act.
29. When there are such breaches of the Act the first point of call is the Review Board or the Regulatory Authority, which have the mandate to deal. If a party is aggrieved with the decision made, it then moves to the High Court for review of the decision. In this case it has not been disclosed whether any decision was made by the Review Board or if that be the case, this court is wondering what decision is being challenged in the Nairobi Judicial Review case No. E205 of 2021. The parties therein must be challenging a decision before JR Division. Which is that decision as none has been disclosed here?
30. What this court is trying to stress is that once a dispute resolution process has been put in place the same must be exhausted first before parties run to court. The Court of Appeal emphasized the importance of exhausting the available statutory remedies before invoking the court’s jurisdiction in Speaker of the National Assembly vs. Karume  KLR 21, and further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 others Vs. Samuel Munga Henry & 1756 others  eKLR as follows:
“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be a fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanism in place for resolution outside the courts. The Ex parte Applicants argue that this accords with Article 159 of the Constitution which commands court to encourage alternative means of dispute resolution.”
31. Once a procedure is prescribed by the law one must use it unless for any other good reason he/she is not able to do so. See Kituo cha Sheria & another V. the Central Bank of Kenya & others Nrb. High Court No.191 of 2011  eKLR by Justice Mumbi Ngugi J (as she then was).
My finding is that the petitioner was not locked out from invoking the provisions under the Public Procurement Asset and Disposal Act and in particular sections 170(d), 174 and 175 of the said Act. I do not agree with the argument that the only recourse for the petitioner was the court.
32. For the reasons set out above, I find the preliminary objection by the 3rd respondent, 7th, 8th, 10th and 11th Interested parties to have merit and it succeeds. The petition and notice of motion both dated 24th January, 2022 are struck out for being premature, the doctrine of exhaustion not having been complied with.
Costs to the 3rd respondent, 7th, 8th, 10th, and 11th Interested Parties.
33. The interim conservatory orders issued herein on 27.1.2022 are hereby vacated.
DELIVERED VIRTUALLY, SIGNED AND DATED THIS 22ND DAY OF MARCH, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.
H. I. ONG’UDI
JUDGE OF THE HIGH COURT